55 Mich. App. 499 | Mich. Ct. App. | 1974
A teachers’ strike began in the City of Detroit on September 4, 1973, the day the school year was to commence. That same day plaintiff-appellee, Detroit Board of Education (hereinafter DBE), applied to the Wayne County
Upon issuance of the writ, the DBE requested that its suit be reinstituted. On September 21, 1973, Circuit Judge Thomas J. Foley issued a show-cause order to defendant-appellant Detroit Federation of Teachers (hereinafter DFT) and certain named union officers. After a lengthy hearing, Judge Foley signed an order for a mandatory injunction on September 25, 1973. He found that the teachers were public employees within the meaning of MCLA 423.201 et seq.; MSA 17.455(1) et seq., and further found that the teachers were on strike in violation of MCLA 423.201; MSA 17.455(1) and MCLA 423.202; MSA 17.455(2).
The injunction provided, in pertinent part, as follows:
"(1) That the officers of the Detroit Federation of Teachers Local 231 of the American Federation of Teachers and AFL-CIO, a voluntary unincorporated association, shall call a membership meeting of local 231 of the American Federation of Teachers and AFL-CIO forthwith.
"(2) That the officers of said federation and all the defendants shall at such meeting recommend and actively urge that the members of the Detroit Federation of Teachers Local 231 of the American Federation of Teachers and AFL-CIO return to their employment forthwith.
'■'(3) That the members of the Detroit Federation of Teachers Local 231 of the American Federation of Teachers and AFL-CIO return to their employment in the Detroit school system forthwith.”
On September 27, 1973, the judge issued an
On September 28, 1973, the trial judge issued, at the request of the DBE, an order requiring the DFT and its officers to show cause why they should not be held in contempt of court for failure to obey the injunction. The alleged violations of the injunction were stated in the prayer for relief as follows:
"5. That defendants herein well knowing the premises but wholly disregarding the said injunction order of this court in that:
"(a) The Detroit Federation of Teachers and its officers have failed to call a membership meeting of said federation;
"(b) The Detroit Federation of Teachers and its officers have failed to recommend and actively urge said federation’s members to return to their employment forthwith,
"in contempt of the aforementioned injunctive order of this honorable court.”
Fines were sought as sanctions to compel obedience. Service was made on the named defendants on September 29, 1973.
Hearings lasted from October 1 to October 4, 1973. The trial judge found that defendant DFT and three defendant officers had failed to recommend and actively urge that members return to work. He specifically did not find that the defendants had violated that portion of the order requiring them to call a membership meeting. Fines and damages were imposed on each defendant found guilty of contempt in amounts and under conditions not relevant to the present case.
It is important at the outset to recognize that we are here not deciding whether the teachers’ strike was illegal. Nor are we deciding whether the injunction was proper.
We reach and decide only two issues, which may be stated as follows:
I. Was the injunction, and the findings of contempt resulting from its violation, void for lack of subject-matter jurisdiction?
II. Was there sufficient evidence to support the findings of contempt?
I.
The Michigan Employment Relations Commission (MERC) has been given exclusive jurisdiction over all unfair labor practices. MCLA 423.216; MSA 17.455(16). See Labor Mediation Board v Jackson County Road Commissioners, 365 Mich 645; 114 NW2d 183 (1962).
DFT asserts that, by virtue of a recent amendment,
Reliance for the minor premise is placed on MCLA 423.210(3)(c); MSA 17.455(10)(3)(c), which now provides in pertinent part:
"(3) It shall be unlawful for a labor organization or its agents * * * (c) to refuse to bargain collectively with a public employer * * * .”
This broad definition of "strike” is said to include failure to bargain in good faith, since good faith bargaining is one of the "duties of employment”. Therefore, concludes DFT, a strike is an unfair labor practice, furnishing MERC with exclusive jurisdiction.
This reasoning is faulty on both logical and policy grounds. First, to say that a failure to bargain in good faith might constitute a strike for purposes of the definition of the latter term in MCLA 423.201; MSA 17.455(1) is not to say that every strike is an unfair labor practice. It is surely possible that a union could both bargain in good faith and still strike.
Moreover, the term "strike” is conspicuously absent from the list of those labor practices defined in MCLA 423.210; MSA 17.455(10) as unfair. Extending jurisdiction, particularly exclusive jurisdiction, by implication is appropriate only when absolutely necessary. Holland School District v Holland Education Association, 380 Mich 314, 325; 157 NW2d 206 (1968).
Finally, acceptance of appellant DFT’s argument would render redundant the provisions of MCLA 423.202; MSA 17.455(2) which make public strikes
For the above reasons, in the absence of specific language to the contrary, we uphold the historic power of courts to enjoin strikes by public employees. See Holland, supra. We hold that MERC does not have exclusive jurisdiction to resolve this labor dispute.
II.
We now proceed to consider whether there was sufficient evidence to support the findings of contempt.
The burden of proof was on the appellee DBE to prove that the named defendants-appellants violated the injunction in the manner alleged. See Thorlakson v Wells, 207 NW2d 326, 329 (ND 1973); Colley v Tatum, 227 Ga 294; 180 SE2d 346 (1971); United States Time Corp v GEM of Boston, Inc, 345 Mass 279; 186 NE2d 920 (1963). The rule is particularly well stated in Cohn v Kramer, 136 F2d 293 (CA 6, 1943), as follows:
"In a civil contempt proceeding for violation of a decree, the respondent is entitled to opportunity to controvert the charges against him; and, when he denies the charges, the burden rests upon the petitioner to prove by evidence that the decree has been violated. If the facts alleged as violation are neither admitted nor proven, the respondent may not be adjudged in contempt. This is elementary law.” (Citations omitted.) Id. at 295.
"The power to punish for contempt is awesome and carries with it the equally great responsibility to apply it judiciously and only when the contempt is clearly and unequivocally shown. ” (Emphasis supplied.) Id., at 572.
The trial judge found that the DFT and three officers had failed to "recommend and actively urge” that union members return to work. The injunction required them to (1) call a meeting and (2) at that meeting "recommend and actively urge” members to return to work. The trial judge did not find that the defendants-appellants failed to call a meeting. He therefore must have concluded that the September 30, 1973 meeting satisfied the requirement that a "meeting” be called.
The only evidence of what occurred during that meeting came from the testimony of Mary Ellen Riordan, president of DFT and a named defendant. On direct examination she testified as follows:
"Q. What if anything did you say to the membership with respect to the court’s orders?
* * *
”A. I said that the judge stated in his order that
”Q. What next happened?
* * *
"A. I was unable to continue at that point for some time because of the shouting from the people who were in the assembly. * * * I stated that we were told that we could not be absent from the negotiating table, and that again I was ordered by the judge, and was complying with his orders, to tell them to go back to work. Again I was interrupted and could not continue talking.”
She did not use the words "urge” or "recommend”. As she explained on redirect:
’A. I told them that they were ordered by the court’s order, and that I was instructed to order them, and was so doing, to go back to work. I didn’t use the word order. I used some other word, I don’t remember which one, because I don’t order members to do things. I tell them what I think they should do upon occasion, but I don’t use the word order, I order you to do anything.”
And further:
"Q. Did you tell them they should go back to work?
’A. Yes, sir.”
This testimony was uncontradicted.
There was no evidence whatsoever as to what anyone else said or did at the meeting. In particular the only witness to testify on that issue, Mrs. Riordan, said she couldn’t recall what defendant Elliott or defendant Bannan had said to the group. Neither of the latter two defendants testified.
If the trial judge believed Mrs. Riordan’s testimony, then there was no basis whatsoever for his finding. She testified that she told the members to return to work. She was required by the injunction to "recommend and actively urge” them to do so. She was not required to be enthusiastic about it. She was not required to persist in the face of shouts and threats. She was not required to succeed in ending the strike. Her testimony stands uncontradicted. It cannot support a clear and unequivocal finding that she did not urge members to return to work.
On the other hand, if her testimony was not believed, the only other evidence offered was the failure to order the banners removed. That fact, standing alone, cannot support a contempt citation. No matter how the credibility of Mrs. Riordan was resolved by the trial judge, the record fails to support the finding of contempt against her. This conclusion is even more compelling with respect to appellants Bannan, Elliott, and DFT, as to whom no relevant evidence at all was introduced.
Reversed. Costs to appellants.
See 1973 PA 25 amending MCLA 423.210; MSA 17.455(10).
Compare Labor Mediation Board v Jackson County Road Commission, supra; Gaidamavice v Newago Board of County Road Commissioners, 341 Mich 280; 67 NW2d 178 (1954); Royal Oak School District v State Tenure Commission, 367 Mich 689; 117 NW2d 181 (1962).
Such, a finding, when necessary to the decision, may be implied. Cf. Clark v Apex Foundry, 7 Mich App 684, 688; 153 NW2d 182 (1967).
Any suggestion that other evidence introduced by DBE — consisting of proof that defendants-appellants failed to use other means to carry out their duty to "recommend and actively urge” members to